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Intersentia 125 CONSTITUTIONALISM WITHOUT GOVERNANCE: INTERNATIONAL STANDARDS IN THE AFGHAN LEGAL SYSTEM Ebrahim Afsah* 1. INTRODUCTION: THE ROLE OF LAW IN STABILISING CONFLICT ere has been a lot of attention in recent years about improving the quality of legal systems in overseas jurisdictions. is is reflected in the growing proportion of rule of law components in development assistance 1 and, especially, in post- conflict stabilisation missions. 2 External actors endeavour to strengthen the role of international legal standards in the courts and, more broadly, the political life of societies emerging from violent conflict. Virtually all stabilisation missions contain today important rule of law components, a shiſt in emphasis that is mirrored in bilateral financial assistance. 3 e international engagement in Afghanistan since December 2001 has been no exception, having placed a heavy * BA (SOAS), M.Phil. (TCD), MPA (Harvard), Ph.D. (TCD). e author works for a large consulting company, currently advising the Afghan government on public administration and legal reform, issues with which he has been involved in that country since 2003. e views presented here are solely those of the author and should not be attributed to the organisations or governments which currently or in the past funded his work. Correspondence can be addressed to [email protected] 1 A workable definition of the concept has been provided by the United Nations which describes the ‘rule of law’ broadly as ‘a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.’ UN, Report of the Secretary-General, Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (S/2004/616) (23 August 2004), p. 4, para. 6. 2 United Nations, Justice Components in United Nations Peace Operations, Ref. 2009.30 (New York: United Nations DPKO/DFS, 2009). 3 For details on this shiſt in emphasis, see K. Hamilton, K. Bolt and G. Ruta, Where is the Wealth of Nations? Measuring Capital for the 21 st Century (Washington DC: World Bank, 2006). PROEF 1

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Importing international law.indbEbrahim Afsah*
1. INTRODUCTION: THE ROLE OF LAW IN STABILISING CONFLICT
Th ere has been a lot of attention in recent years about improving the quality of legal systems in overseas jurisdictions. Th is is refl ected in the growing proportion of rule of law components in development assistance1 and, especially, in post- confl ict stabilisation missions.2 External actors endeavour to strengthen the role of international legal standards in the courts and, more broadly, the political life of societies emerging from violent confl ict. Virtually all stabilisation missions contain today important rule of law components, a shift in emphasis that is mirrored in bilateral fi nancial assistance.3 Th e international engagement in Afghanistan since December 2001 has been no exception, having placed a heavy
* BA (SOAS), M.Phil. (TCD), MPA (Harvard), Ph.D. (TCD). Th e author works for a large consulting company, currently advising the Afghan government on public administration and legal reform, issues with which he has been involved in that country since 2003. Th e views presented here are solely those of the author and should not be attributed to the organisations or governments which currently or in the past funded his work. Correspondence can be addressed to [email protected]
1 A workable defi nition of the concept has been provided by the United Nations which describes the ‘rule of law’ broadly as ‘a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.’ UN, Report of the Secretary-General, Rule of Law and Transitional Justice in Confl ict and Post-Confl ict Societies (S/2004/616) (23 August 2004), p. 4, para. 6.
2 United Nations, Justice Components in United Nations Peace Operations, Ref. 2009.30 (New York: United Nations DPKO/DFS, 2009).
3 For details on this shift in emphasis, see K. Hamilton, K. Bolt and G. Ruta, Where is the Wealth of Nations? Measuring Capital for the 21st Century (Washington DC: World Bank, 2006).
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emphasis on introducing international legal norms into the Afghan legal and political system.
Th is concerted interest in the rule of law in peripheral overseas societies is generally justifi ed by reference to the normative conviction that human beings are equal and deserve equal protection, thus calling for the application of uniform international standards.4 Th is essentially moral position is sometimes cloaked in the language of enlightened self-interest, claiming that the protection of equal norms abroad will prevent negative spill-over in the future:
For we live in a world in which apathy about what happens in ‘far away countries of which we know nothing’ can all too easily lead – through contagion, through the message such moral passivity sends to troublemakers, would-be tyrants, and ethnic cleansers elsewhere – not to the kind of Armageddon we feared during the Cold War but to a creeping escalation of disorder and beastliness that will, sooner or later, reach the shores of the complacent, the rich, and the indiff erent.5
To many, the veracity of this causal chain was powerfully affi rmed by the painful experience of the attacks of September 2001, which directly led to the costly and on-going military intervention in Afghanistan.6 According to this popular reading of history, societal collapse can never be contained, but will eventually reverberate through the international system.
Th e emphasis on law as a tool for societal stabilisation is owed to two distinct but related phenomena.7 First, the majority of international stabilisation missions are undertaken by Western societies which share common functional set-ups and normative commitments. Th eir administrative procedures and political decision-making are centred on public law and constitutional principles. Th ese normative commitments and procedural constraints cannot easily be ignored when the polity acts externally.8 Th is is particularly pronounced in ‘wars of choice’ which do not respond to an immediate existential threat.9
4 A convincing critical treatment of this school of thought can be found in J. Kokott, Souveräne Gleichheit und Demokratie im Völkerrecht, 64 (3) Zeitschrift für ausländisches öff entliches Recht und Völkerrecht 520–21, 533 (2004).
5 S. Hoff mann, In Defense of Mother Teresa, 75(2) Foreign Aff airs 75 (March-April 1996). Hoff mann is paraphrasing here British Prime Minister Chamberlain’s 1938 remarks about Czechoslovakia.
6 ‘Th en came 9/11, a reminder that there are no far away places. … [We need to understand] the deep instability in many parts of the globe, including Afghanistan, and that this instability – and the hatreds associated with it – pose a risk not only to people in a region but to us. Th is is where the Vietnam analogy breaks down: the West can’t aff ord to lose.’ B. Rae, Why Afghanistan is not Vietnam, Th e Star (Toronto, 2 August 2010) (emphasis added).
7 For a defence of this role, see the well-argued R. Teitel, Transitional Jurisprudence: Th e Role of Law in Political Transformation, 106 Yale Law Journal 2009 et seq (1997).
8 For a theoretical exploration of these dynamics, see V.A. Baird, Building Institutional Legitimacy: Th e Role of Procedural Justice, 54(2) Political Research Quarterly 333–54 (June 2001).
9 M. Ottaway, Promoting Democracy aft er Confl ict: Th e Diffi cult Choices, 4(3) International Studies Perspectives 314–22 (2003); T.M. Sandler and K. Hartley, Th e Political Economy of
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Put bluntly, the tax-paying, conscription-bearing public in democratic societies demands a certain degree of democratic idealism if it is to accept the costs of facultative overseas engagements.10 Recourse to democratic ideals thus serves primarily domestic psychological reasons, namely the need to maintain a cherished self-image of a rule-bound, majoritarian, deliberative society remaining true to itself when acting abroad.11
According to these normative beliefs there would be little sense in accepting the costs of foreign intervention only to replace anarchy with dictatorship. In this vein, an impressive list of countries12 have during the past decade assumed considerable costs13 to not only stabilise but transform Afghanistan into a democracy governed by the rule of law.14
Th ere is a second set of reasons for the emphasis on democracy and the rule of law in the pacifi cation of fractured societies. It is believed that the creation of rule-bound institutions has powerful benefi ts for the internal and external behaviour of societies,15 in other words that democracies are more peaceful than autocracies.16 While the empirical evidence for this proposition of political stability is complex and mixed,17 evidence for the domestic economic benefi ts of
NATO: Past, Present, and into the 21st Century (Cambridge: Cambridge University Press, 1999).
10 F. Fukuyama, America at the Crossroads – Democracy, Power and the Neoconservative Legacy (New Haven: Yale University Press, 2006); S.N. Katz, Gun Barrel Democracy? Democratic Constitutionalism Following Military Occupation: Refl ections on the U.S. Experience in Japan, Germany, Afghanistan and Iraq, Princeton Law and Public Aff airs Working Paper No. 04–010 (Princeton Law and Public Aff airs Working Paper Series, 2004).
11 B. Spector, Memory, Myth, and the National Mall, 2(3) Culture and Psyche 73–97 (Summer 2008).
12 For a list see NATO, NATO/ISAF Contributions by Country, Mons, Belgium, NATO Headquarters, 2010, available at www.isaf.nato.int/en/troop-contributing-nations/index.php (visited 30 April 2010).
13 Ein toter Soldat kostet 2,3 Millionen Euro, Süddeutsche Zeitung (München, 21 May 2010); Deutsches Institut für Wirtschaft sforschung, Die Kosten des Afghanistan-Einsatzes müssen auf breiterer Basis berechnet werden, Wochenbericht des DIW Berlin Nr 21/2010 (Berlin: DIW, 26 May 2010).
14 Comprehensive overviews of these eff orts can be found in United Nations Development Programme, Afghanistan Human Development Report 2007. Bridging Modernity and Tradition: Rule of Law and the Search for Justice (Kabul: UNDP, 2007), available at www. undp.org.af/publications/KeyDocuments/nhdr07_complete.pdf (visited 7 May 2010); United States Institute of Peace, Establishing the Rule of Law in Afghanistan, Special Report 117 (Washington DC: USIP, March 2004).
15 M.H. Halperin, M.M. Weinstein and J. Siegle, Th e Democracy Advantage: How Democracies Promote Peace and Prosperity (London: Routledge/Council for Foreign Relation, 2004).
16 While superfi cially persuasive, the proposition is empirically considerably more complex than is commonly acknowledged: see inter alia C. Layne, Kant or Cant: Th e Myth of the Democratic Peace, 19(2) International Security 5–49 (1994).
17 E.A. Henderson, Th e Slow Roasting of Sacred Cows: J. David Singer and the Democratic Peace, in: Paul Diehl (ed.) Th e Scourge of War: New Extensions on an Old Problem 169–88 (Ann Arbor: University of Michigan Press, 2004): C. Davenport, State Repression and the Domestic Democratic Peace (Cambridge: Cambridge University Press, 2007).
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the rule of law is overwhelming.18 As the World Bank has noted, ‘[e]conomic growth, political modernization, the protection of human rights, and other worthy objectives are all believed to hinge, at least in part, on “the rule of law.”’19
Th ese normative and functional preferences for the rule of law have guided international eff orts to transform the Afghan confl ict by building stable statehood. While the normative re-alignment of the Afghan state with the international legal mainstream has, at least partially, been eff ected in constitutive legal texts, the practical reality remains largely at odds with these pronouncements.
Th is chapter argues that the failure of international legal standards to have a marked impact is not primarily grounded in countervailing cultural or religious norms, but the lack of eff ective state institutions, including courts and law enforcement agencies. Th e next section therefore describes the political climate in which the international community conferred chief responsibility on a largely fi ctitious Afghan state. Th e third section explores the implications of this approach in the institutional context of dysfunctional, merely nominal state organs. Th e fourth section examines the functional assumptions and cultural norms implicit in prevailing notions of constitutionalism, premises which are largely inapplicable in Afghanistan. Th e fi ft h section looks at the disjuncture between general qualities of statehood and the very diff erent reality of the Afghan state. Th e sixth section thus examines the importance of functioning state structures for the rule of law, raising, in the seventh section, the question whether constitutionalism can exist without eff ective statehood. Th e concluding section denies this is possible.
2. POLITICAL CONTEXT OF RECONSTRUCTION
Self-serving descriptions by its protagonists notwithstanding,20 the Afghan confl ict was only marginally a national defence against a foreign aggressor. Primarily, it was a civil war fought between those who favoured accelerated modernisation and those who resisted this change with reference to an atavistic understanding of religion.21 Th is underlying confl ict both predated and survived the Soviet intervention, ossifying by 2001 into a murderous stalemate of perennially shift ing alliances of self-interested armed groups. Th e tragedy of the
18 For an overview of the fi eld, see D.M. Trubek and A. Santos, Th e New Law and Economic Development: A Critical Appraisal (Cambridge: Cambridge University Press, 2006); Y.P. Ghai, R. Luckham and F.G. Snyder (eds), Th e Political Economy of Law. A Th ird World Reader (Delhi: Oxford University Press, 1987).
19 World Bank, Rule of Law and Development (Washington DC: World Bank 2009), available at http://tinyurl.com/dfyymq (visited 29 October 2010).
20 See note 343. 21 G. Dorronsoro, Revolution Unending: Afghanistan, 1979 to the Present (London: C. Hurst &
Co. Publishers, 2005); G. Kepel, Th e Roots of Radical Islam (London: Saqi, 2005).
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September 2001 attacks on the United States had the unintended positive eff ect of breaking up that stalemate. Following the refusal of the Taliban de facto government to hand over al-Qaeda suspects believed to have been responsible for the attacks,22 the United States initiated military action against Afghanistan. Two aspects of this intervention are noteworthy.
Operationally, the US military action diff ered from interventions explicitly done for humanitarian purposes by eschewing any pretext of neutrality and openly taking sides in the on-going civil war by utilising the predominantly Tajik Northern Alliance as the ground troops of the invasion.23 Th e military preponderance of the United States led to the quick disintegration of the Taliban government and the subsequent takeover of the capital and the physical centres of government by the Northern Alliance.24
Politically, the intervention occurred (unlike later in Iraq25) with the endorsement of the United Nations Security Council and the almost universal approval of the international community.26 Th e attacks were condemned by both the General Assembly27 and the Security Council.28 It was broadly recognised that these attacks triggered the inherent right of self-defence of the United States.29
Th e broad legitimacy of the military intervention and the unwillingness of the United States to create an occupation government30 led to internationally meditated negotiations towards an inclusive peace agreement that enjoyed
22 Th e Taliban had failed to respond to earlier requests to take actions against preparatory activities by terrorists: S/RES/1214 (1998) of 8 December 1998; S/RES/1267 (1999) of 15 October 1999; S/RES/1333 (2000) of 19 December 2000; S/RES/1378 (2001) of 14 November 2001), or to the requests to turn over Osama bin Laden and his associates in S/RES/1267 (1999) of 15 October 1999 and S/RES/1333 (2000) of 19 December 2000.
23 International Crisis Group, Afghanistan: Th e Problem of Pashtun Alienation, Asia Report, No. 62 (Brussels/Kabul: ICG, 2003).
24 S. Chesterman, Walking Soft ly in Afghanistan: Th e Future of UN State-building, 44(3) Survival 37–46 (Autumn 2002).
25 P.J. Katzenstein, Same War – Diff erent Views: Germany, Japan, and Counterterrorism, 57(4) International Organization 731–60 (2003).
26 For an overview of the copious literature confi rming this position, see E. Afsah and A. Hilal Guhr, Afghanistan: Building a State to Keep the Peace, 9 Max Planck Yearbook of United Nations Law p. 406, n 127 (2005).
27 A/RES/56/1 of 12 September 2001. 28 S/RES/1368 (2001) of 12 September 2001. Th e curt statement made on 19 September 2001 by
the President of the Security Council, Jean-David Levitte (France), is highly indicative in this regard: Today there is one, and only one, message the Security Council has for the Taliban: implement United Nations Security Council resolutions, in particular resolution 1333, immediately and unconditionally.’ Available at <www.un.org.pk/latest-dev/hq-pre-010918. htm>.
29 R. Wolfrum, Th e Attack of September 11, 2001, the Wars Against the Taliban and Iraq: Is Th ere a Need to Reconsider International Law on the Recourse to Force and the Rules in Armed Confl ict?, 7 Max Planck Yearbook of United Nations Law 1–52 (2003).
30 Again, the contrast to the war in Iraq is striking: see E. Afsah, Limits and Limitations of Power: Th e Continued Relevance of Occupation Law, 7(6) German Law Journal p. 569, 573–4 (June 2006).
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considerable domestic, regional, and global legitimacy.31 Th e extremely fractious nature of Afghan politics and countless failed prior mediation eff orts did not bode well for the outcome of the negotiations held in Bonn.32 Th at these succeeded against such odds is primarily due to the willingness and ability of the United States to coerce compliance in addition to the enticing prospect of international assistance.33
Th e negations yielded an agreement that was more a road-map than a comprehensive peace settlement. It is noteworthy that the Bonn Agreement contained no stipulations to deal with transitional justice.34 Th is impunity for past abuses refl ects the composition of the negotiating groups which contained many Afghan leaders widely believed to have been responsible for war crimes.35 Th is shortcoming was acknowledged by the chief United Nations negotiator Lakhdar Brahimi in his report to the Security Council:
Th e provisional institutions whose creation is suggested will not include every one who should be there and it may include some whose credentials many in Afghanistan may have doubts about. Please remember that what is hopefully to be achieved is the elusive peace … the broad based interim administration is the beginning, not the end of the road.36
Th e Agreement established the character of the international involvement in Afghanistan as merely supportive, with control lying in the hands of the Afghan authorities. It reaffi rmed ‘the independence, national sovereignty and territorial integrity of Afghanistan’37 and stipulated that power would be transferred to an
31 UN, Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions (Bonn Agreement) (S/2001/1154) (5 December 2001), available at www.un.org/News/dh/latest/afghan/afghan-agree.htm (visited 6 February 2011).
32 Th e rather long and sad history of failed United Nations mediation eff orts is well explained in Chapter 2 of A. Rasanayagam, Afghanistan: A Modern History – Monarchy, Despotism or Democracy?, Th e Problems of Governance in the Muslim Tradition (London: I.B. Tauris, 2005).
33 Afsah and Guhr, supra note 26, p. 410–16, especially p. 412. 34 Quite to the contrary, the Agreement went out of its way to praise the coterie of warlords as
‘heroes of jihad and champions of peace, stability and reconstruction of their beloved homeland’ and seeking international fi nancial assistance for them ‘in recognition of the heroic role played by the mujahidin in protecting the independence of Afghanistan and the dignity of its people.’ Bonn Agreement, supra note 31, Preamble, para. 4; Annex III (4).
35 ICG, Asia Report No 45, Afghanistan: Judicial Reform and Transitional Justice 17 (28 January 2003); P.G. Danchin, Transitional Justice in Afghanistan. Confronting Violations of International Humanitarian and Human Rights Law, 4 Yearbook of International Humanitarian Law 3–51 (2004).
36 Lakhdar Brahimi, Briefi ng to the Security Council, Transcript from 13 November 2001, available at www.un.org/News/dh/latest/afghan/brahimi-sc- briefi ng.htm (visited 31 March 2005).
37 Bonn Agreement, supra note 31, Preamble, para. 2.
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Interim Authority only two weeks aft er the talks in Bonn,38 confi rming that ‘the Interim Authority shall be the repository of Afghan sovereignty, with immediate eff ect.’39 It laid down a very ambitious time frame for the further establishment of state institutions.
Th e Agreement in essence did three things: fi rst, it attributed sovereignty to an unelected, ad hoc Interim Authority;40 second, it stipulated the convening of an Emergency Loya Jirga (grand national assembly) to elect a more representative Transitional Authority;41 and third, it clarifi ed the law of the land42 and re-endowed the court system.43 It also postulated a constitutional process involving draft ing, popular consultation, review, and representative adoption.44 Annex I outlined support by the international community for the maintenance of security; Annex II laid out the role of the United Nations during the transitional process; Annex III contained the request to the international community for fi nancial support; and Annex IV laid out the composition of the Interim Administration.
Without restating in detail its substantive and procedural content and the three-year transitional period it outlined,45 the Agreement’s approach to the rule of law was characterised by pragmatism. Th e Afghan legal landscape resembled a palimpsest of layers of overlapping, sometimes contradictory laws introduced by successive political regimes. To disentangle this statutory mess was not only impossible due to the shortage of time and skilled lawyers, but, more prosaically, because most physical trace of these laws had been destroyed in the country. Th e process of piecing together the mosaic of the Afghan law of the land from scattered isolated holdings in private collections and libraries abroad has been painfully slow, diffi cult, and remains an on-going endeavour.46 Th e only realistic option in this situation was to reinstate the 1964
38 Bonn Agreement, supra note 31, Section I (1). Sovereignty was transferred to the Afghan Interim Authority on 22 December 2003.
39 Bonn Agreement, supra note 31, Section I (3). 40 Bonn Agreement, supra note 31, Section III. 41 Bonn Agreement, supra note 31, Section I (5) and Section IV. 42 Bonn Agreement, supra note 31, Section II (1) (ii). 43 Bonn Agreement, supra note 31, Section II (2). 44 Bonn Agreement, supra note 31, Section I (6). 45 Comprehensive treatments can be found in Afsah and Guhr, supra note 26, p. 419–38; M.
Schoiswohl, Constitution-making and International Law in post-confl ict Afghanistan, 39(3) Vanderbilt Journal of Transnational Law 819–63 (2006).
46 Some success has been made in this respect in the intervening years and some, perfunctory, collections have been placed online. A good collection can be found at Asian Legal Information Institute, Afghan Laws 1933–2008, Sydney, Australia, ALII, 2008, available at www.asianlii.org/af/legis/laws/ (visited 29 October 2010). A good collection of links to resources on government and law can be found at New York University Law School and Omar Sial, GlobaLex: Islamic Republic of Afghanistan Legal System and Research, New York, New York University, December 2006, available at www.nyulawglobal.org/globalex/Afghanistan. htm (visited 29 October 2010).
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Constitution47 and declare all prior laws without distinction as remaining in force unless otherwise provided:
(1) Th e following legal framework shall be applicable on an interim basis until the adoption of the new Constitution referred to above: (i) Th e Constitution of 1964, (a) to the extent that its provisions are not
inconsistent with those contained in this agreement, and (b) with the exception of those provisions relating to the monarchy and to the executive and legislative bodies provided in the Constitution; and
(ii) existing laws and regulations, to the extent that they are not inconsistent with this agreement or with international legal obligations to which Afghanistan is a party, or with those applicable provisions contained in the Constitution of 1964, provided that the Interim Authority shall have the power to repeal or amend those laws and regulations.
(2) Th e judicial power of Afghanistan shall be independent and shall be vested in a Supreme Court of Afghanistan, and such other courts as may be established by the Interim Administration. Th e Interim Administration shall establish, with the assistance of the United Nations, a Judicial Commission to rebuild the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions.48
From a purely textual point of view these decisions were appropriate, but, as will shortly become apparent, the real challenge laid with the non-existing administrative capacity without which laws remain ineff ective. Furthermore, the references to international law were made in response to foreign insistence, not any perceptive Afghan desire to anchor their new state to fundamental norms.49 Consequently, international legal standards continue to be largely perceived as foreign impositions with only limited political or bureaucratic traction.
Th e affi rmation of Afghan control left only a supportive role for the international community,50 described by Brahimi as a ‘light foot approach’ of
47 Th is document was chosen because it was widely considered to have been technically proven and ideologically neutral, as well as being emblematic of the perceived ‘golden age’ of relative stability and prosperity.
For a discussion of the country’s other constitutions, see Afsah and Guhr, supra note 26, p. 424, n 219. In-depth treatments can be found in R. Bachardoust, Afghanistan – droit constitutionnel, histoire, régimes politiques et relations diplomatiques depuis 1747 (Paris: L’Harmattan, 2003); Gerhard Moltmann, Die Verfassungsentwicklung Afghanistans von 1901 bis 1986, 35 Jahrbuch des Öff entlichen Rechts 509–74 (1986).
48 Bonn Agreement, supra note 31, Section II (1)(i). 49 Th is was, by contrast, a very strong motivating factor in the development of the post-war
European human rights mechanisms: see for instance A. Moravcsik, Explaining International Human Rights Regimes: Liberal Th eory and Western Europe, 1(2) European Journal of International Relations 157–89 (1995); A. Moravcsik, Th e Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54(2) International Organization 217–52 (2000).
50 Report of the Secretary General, Th e situation in Afghanistan and its implications for international peace and security, para. 98 (A/56/875-S/2002/278) (18 March 2002).
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the international community’s assistance eff orts.51 Th e principle sought to make a virtue of the political and operational constraints that defi ned the Afghan confl ict. Despite its obvious unreality, it is highly questionable whether an alternative to ‘Afghan ownership’ existed because it would have necessitated a degree of foreign ‘vice-regency’ that was fi scally, militarily, and politically just not feasible.
Nonetheless, in the face of the inability of Afghan institutions to actually govern, the stipulation of ‘Afghan ownership’ failed to designate an eff ective decision-making authority. Th e Afghan warlords who took over nominal control aft er Bonn were at best inexperienced and lacking requisite legal, managerial, and administrative skills. At worst, they pursued determined policies of personal enrichment to the detriment of society at large.52
3. INSTITUTIONAL CONTEXT OF RECONSTRUCTION
One of the most striking characteristics of the Afghan situation is the degree of formalism with which state agencies are created and maintained, with only the fl imsiest connection to any administrative output, let alone service delivery to the public. Already in Bonn no fewer than 29 ministries were identifi ed,53 and the number has since grown substantially, augmented by countless independent agencies, commissions, and other government bodies. With the possible exception of the Ministries of Finance, Interior and Defence, none of these institutions centre around functions but exclusively around structures. Th e creation and maintenance of these bodies follows a patron-client logic and a
51 Th e conceptual outlines of this approach had been laid down by Brahimi already some time earlier in the infl uential document Lakhdar Brahimi, Report of the Panel on United Nations Peace Operations (‘Brahimi Report’), United Nations, New York (21 August 2000), available at www.un.org/peace/reports/peace_operations/. Its application to the Afghan confl ict is described at some length in Afsah and Guhr, supra note 26, p. 383, 404–05; see also Chesterman, supra note 24.
52 Th e collapse of Kabul Bank has become a symbol for the extreme degree of graft exhibited by the country’s ‘elite’ and bank-rolled by the international community. About a dozen ‘shareholders’ of this bank, who were members of the Afghan cabinet or related to the President, stole almost a billion dollars. Not only did this act have virtually no criminal or civil repercussion for these individuals, but the Central Bank, ie the international community, replenished Kabul Bank’s coff ers with an additional US$450 m.: see A.J. Rubin and J. Risen, Losses at Afghan Bank Could Be $900 Million, New York Times (30 January 2011).
53 It should be stressed that it can actually make sense during peace negotiations to create administratively useless structures simply to have enough perks and post to include possible spoilers in the process, rather than have them undermined it if left out. See also C. Bell, Peace Agreements: Th eir Nature and Legal Status, 100(2) American Journal of International Law 373–412 (2006); S.J. Stedman, D. Rothchild and E.M. Cousens (eds.), Ending Civil Wars: Th e Implementation of Peace Agreements (Boulder: Lynne Rienner, 2002).
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vague idea of what it means to be a ‘real’ state, not any tangible functional necessity.54
In consequence, many bodies have overlapping mandates and generally only the most remote connection to the living realities of the population they are meant to serve. In short, most agencies of the Afghan state have an almost exclusively nominal existence, employing large numbers of people, elaborate administrative structures and byzantine procedures, yet producing very little in terms of administrative output.
But while state institutions are largely dysfunctional, they do have concrete institutional and personal reality. Perhaps paradoxically, this shell of a state exhibits considerable resilience and administrative inertia.55 Th e judiciary has here been representative of the wider Afghan state. Th e country’s Supreme Court had remained in existence throughout the period of turmoil and enjoyed a remarkable degree of personal continuity, at least throughout the period of the mujahidin civil war, Taliban takeover, and post 2001. Th e Court administered and paid a nominally comprehensive system of district, provincial, and appeal courts56 and it had reasonably eff ective lines of communication with the judges and clerks throughout the country.57
Th is relative institutional stability was recognised by the Interim and Transitional Authority aft er 2001 which left the existing, heavily Pashtu dominated and pro-Taliban judiciary virtually unperturbed.58 But like most of the other nominal structures of the Afghan state, these bureaucratic structures were largely inward-looking conduits of patronage to the members of the organisation, rather than oriented towards delivering judicial decisions for society. Not surprisingly, the formal justice system remains largely ignored by society and plays a minor role in dispute resolution.59
54 One of the most instructive examples is the Afghan Atomic Energy Commission, centred around a friend of President Karzai who lives in retirement from the IAEA in Vienna and employing no less than 126 staff , none of whom is a physicist. Needless to say that the country has not even the most rudimentary basis for nuclear energy.
55 Th is, again, is not peculiar to the Afghan experience: see F. Fukuyama, Why is there no Science of Public Administration?, 58(1) Journal of International Aff airs 192 (Fall 2004).
56 Th ese structures have subsequently been codifi ed in the Law on the Organization and Jurisdiction of Courts, Offi cial Gazette No. 851.
57 Th e author worked from 2004–2005 embedded with the Supreme Court, the Ministry of Justice and the Attorney General’s Offi ce in support of the country’s Priority Reform and Restructuring programme. As such he obtained a fairly accurate view of existing structures and administrative capabilities.
58 T. Barfi eld, On Local Justice and Culture in Post-Taliban Afghanistan, 17 Connecticut Journal of International Law 437 (2002).
59 Hard fi gures are diffi cult to come by due to the country’s inaccessibility and volatility, but reasonable estimates see only between 5–10% of disputes being resolved in the formal system, with the remainder being addressed by traditional justice mechanisms; ignoring the substantial percentage of disputes where no forum exists at all due to the military, economic, or political strength of the perpetrator. See inter alia T. Barfi eld, Afghan Customary Law and Its Relationship to Formal Judicial Institutions (Washington DC: United States Institute for
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Likewise, existing state structures remain unable to provide essential services and carry out administrative orders. Th e picture that emerges is that of a nominally sound regulatory and administrative framework,60 but which functionally is not able to do very much of anything.61 While it is therefore correct to state, as the World Bank has done, that the basic structure of governance and legal system ‘provide a coherent management and accountability framework for government’,62 the main bottleneck for the establishment of the rule of law was and remains bureaucratic capacity, not least in the judiciary.
Much diplomatic and academic attention has been given to the character of the applicable legal framework in Afghanistan, in particular its commitment to upholding international legal standards as referenced in Sections II (1)(ii), II (2), III (C) (7), and V (2) and (3) of the Bonn Agreement, and Article 7 of the 2004 Afghan Constitution.63 Th ese are important debates and, in time, it is conceivable that domestic audiences will use international law as a lever to protect their interests in domestic debates and before judicial fora. But during the past decade and for the foreseeable future, Afghan society has remained normatively divided about the utility of Western concepts of law and human rights and their complementarity with local notions of the Islamic good life.64 More importantly, the country’s institutions, notably its courts, have been both unwilling and unable to live up to the functional necessities to make these overarching legal commitments a practical reality.65
Th e Bonn Agreement does constitute in many respects a genuine constitutional moment, defi ned in the context of this book as ‘specifi c situations in which attempts have been made to strengthen the domestic rule of law by resorting to international law as an aid.’66 But the relationship with international law has by no means been simply one of empowerment of domestic defenders of the rule of law. Due to the general weakness of formal institutions, the strength
Peace, 26 June 2003); Whit Mason (ed.), Th e Rule of Law in Afghanistan. Missing in Inaction (Cambridge: Cambridge University Press, 2011).
60 World Bank, Afghanistan: State Building, Sustaining Growth, and Reducing Poverty, World Bank Country Study (Washington DC: World Bank, 2005).
61 B.R. Rubin, (Re)Building Afghanistan: Th e Folly of Stateless Democracy, in: Current History 165–70 (April 2004).
62 See World Bank, Afghanistan Building an Eff ective State Priorities for Public Administration Reform ch. 1 (Washington, DC: World Bank, 2008), available at http://tinyurl.com/25agjkd (visited 7 May 2010).
63 Article 7, para. 1: ‘Th e state shall abide by the UN charter, international treaties, international conventions that Afghanistan has signed, and the Universal Declaration of Human Rights.’
64 H. Travis, Freedom or Th eocracy: Constitutionalism in Afghanistan and Iraq, 3(1) Northwestern University Journal of International Human Rights 1–52 (2005).
65 Th e importance of institutional capacity for the eff ectiveness of public law is explored in depth by T. Ginsburg and R.A. Kagan, Institutions & Public Law: Comparative Approaches (New York: P. Lang, 2005); see also R. Hirschl, Juristocracy vs. Th eocracy: Constitutional Courts and the Containment of Sacred Law, 1(2) Middle East Law and Governance 129–65 (2009).
66 From the Editors’ Introduction, in this volume, p. 15.
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of unprincipled power brokers, and atavistic notions of culture, the attitude of Afghan state and society towards international law has remained a ‘love hate relationship’.67 It is widely understood that adherence to international standards defi nes bona fi de statehood and there is considerable pride in the country’s Constitution as having received international recognition as a state of the art legal text.68 Yet, paradoxically and schizophrenically, there is simultaneous outrage at the perception of foreign interference and moral lecturing when the gaping discrepancy between actual conditions in the country are contrasted with the loft y commitments the country has made.69
4. FUNCTIONAL ASSUMPTIONS AND CULTURAL NORMS
Questions about the relative power of courts, the constitutional allocation of functions or the role of institutional actors are necessarily comparative and assume a shared understanding of certain key concepts of constitutional law, political science, and organisational theory. Many of these assumptions, however, are deeply problematic in much of the developing world characterised by a truncated reception of modernity.70
Despite the all-pervasive infl uence of religion, the main determinant of Afghanistan’s current and future outlook is not Islam but the weakness of its political institutions. It is the lack of a functioning state and the absence of suitable ingredients for building one that has throughout Afghanistan’s history determined the livelihood of its people and its relations with the outside.
67 M. Schoiswohl, Th e New Afghanistan Constitution and International Law: A Love-Hate Aff air, 4 International Journal of Constitutional Law 664–76 (2006).
68 For an interesting comparison with the 1905 Iranian Constitution, which likewise symbolised popular yearning for outside recognition of one’s ‘respectability’, see S.A. Arjomand, Constitutional Developments in Afghanistan: A Comparative and Historical Perspective, 53(4) Drake Law Review 943–63 (2005). For a wider still context see R.P. Anand, Family of ‘Civilised’ States and Japan: A Story of Humiliation, Assimilation, Defi ance and Confrontation, 5 Journal of the History of International Law 1–75 (2003) and Y. Onuma, When was the Law of International Society Born? An Inquiry of the History of International Law from an Intercivilizational Perspective, 2(1) Journal of the History of International Law 1–66 (July 2000).
69 So, for instance, the Minister for Labour and Social Aff airs, Ms Amina Afzali, who defended the government’s attempt to close down women’s shelters with reference to the highly publicised case of an eloped girl whose husband had cut off her nose and ears in punishment. In her view the main problem was neither the atrocity nor the underlying social mores, but international media coverage, because such publicity ‘humiliates us in the eyes of the world.’ A.J. Rubin, Afghan Proposal Would Clamp Down on Women’s Shelters, New York Times (10 February 2011).
70 I have explored these issues at some length elsewhere: E. Afsah, Contested Universalities of International Law. Islam’s Struggle with Modernity, 10 Journal of the History of International Law 259–307 (2008).
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However aggressive, intolerant, and backward widely prevailing notions of Islam in this country have been, it is the lack of eff ective governance, not religious parochialism, that brings about chaos and poverty.
Th e role of Islam in public and private life in Afghanistan remains highly contentious,71 a point that has become starkly apparent in the context of the constitutional draft ing process where international pressures for the incorporation of universal normative commitments clashed sharply with an Afghan political elite beholden to the dominant Islamist discourse.72 Already the Bonn Agreement had made clear commitments to upholding international legal standards, not least with respect to human rights. Th ese stipulations were included at the behest of the international mediators facilitating the negotiations. While resistance by the Afghan political factions to the incorporations of these norms had been relatively muted in Bonn, it became extremely vociferous during the constitutional draft ing and adoption process in Kabul.73
Neither the Constitutional Draft ing nor the Constitutional Review Commissions contained any foreign legal experts and the general quality of legal expertise going into the process must be described as poor.74 Outside technical assistance was available in principle but was utilised only very haphazardly and incoherently; by and large outside legal expertise was seen at best as an irritant to inter-factual horse-trading and at worst an attempt at cultural domination. In the end, the review process and, especially, the debate at the Constitutional Loya Jirga exposed the tremendous gap between the international legal acquis as understood even by other Muslim nations, and the prevailing social and legal norms espoused by the dominant strata of Afghan society.
It is oft en forgotten in the deliberate dichotomy between the Taliban and the Western-supported current regime that moderate Islam, let alone secularism, had been one of the earliest victims of the decades of confl ict. Virtually all of the factions yielding infl uence during the years of jihad, civil war and now in Bonn and Kabul adhered to some of the most radical interpretations of Islamist ideology.75 Th eir overall fi nancial and military dependence on Western largesse post 2001 ensured, albeit under severe external pressure, a certain modicum of lip service being paid to universal legal norms. But there is little doubt that
71 K. Mendoza, Islam and Islamism in Afghanistan, Afghanistan Legal History Project, Islamic Legal Studies Program, Harvard Law School, available at www.law.harvard.edu/programs/ ilsp/research/mendoza.pdf (visited 7 May 2010); G. Vercellin, What is an ‘Islamic State’: Th e Factor: ‘Islam’ in the Constitutions of Afghanistan, 9(1) Nomos 35–64 (2004); S. Mahmoudi, Th e Sharî’a in the new Afghan Constitution: Contradiction or Compliment?, 64(4) Zeitschrift für ausländisches öff entliches Recht und Völkerrecht 867–80 (2004).
72 See with respect to human rights norms in the Constitution, inter alia, Schoiswohl, supra note 67; Travis, supra note 64.
73 Th e process is described at length in Afsah and Guhr, supra note 26, p. 423–434. 74 Schoiswohl, supra note 67, p. 832 ff . 75 J.A. Th ier, Th e Crescent and the Gavel, New York Times (26 March 2006); O. Roy and O.
Mongin, Généalogie de l’islamisme (Paris: Hachette, 2001).
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international legal norms carried neither great persuasive force nor liberating potential for those who wielded infl uence in the process.
While resisting the temptation of seeing Afghanistan in an essentialist light,76 it is nevertheless accurate to state that Islam – or more accurately, customary practices and cultural norms which are believed to be Islamic77 – play an overwhelming role in the contemporary political life of that nation. Th is is not so much a result of any inherent dogmatic characteristic of Islamic law but the product of the peculiar socio-political experience of fragmentation, radicalisation, displacement, and massive institutional erosion. Given the endemic weakness of the Afghan state ever since its tentative foundation in 1747, it would be misleading to look here merely at formal governance institutions.
Recalling that the state, even during the period of its greatest strength in the 1920s and 1960s,78 never achieved more than the most fl eeting impact on the life of its subjects,79 one must accept that those ‘stable, valued, recurring patterns of behaviour’80 that could be discerned in Afghanistan were generally not linked to the state. Most of the institutions that formed the rudiments of a beginning civil society in the modern sense, such as schools,81 universities,82 political parties,83 trade unions, etc84 disintegrated during the upheaval of civil war and exile, leaving little more than tribal and religious institutions relatively intact.85
76 As justly criticised in general by S. Zubaida, Law and Power in the Islamic World 3 (London: I.B. Tauris, 2005.
77 Jon Lee Anderson, How Afghans Defi ne Th emselves in Relation to Islam, in Revolutions and Rebellions in Afghanistan, M. Nazif Shahrani and Robert L. Canfi eld (eds) (Berkeley: University of California Press, 1984); B. Glatzer, Being Pashtun – Being Muslim: Concepts of Person and War in Afghanistan, in: Essays on South Asian Society: Culture and Politics, Zentrum Moderner Orient, Arbeitsheft e, Nr. 9 (Berlin: Das Arabische Buch, 1998).
78 Arjomand, supra note 68, p. 945, 951. 79 O. Roy, La formation de l’armée en Afghanistan, in: Y. Richard (ed.) Entre l’Iran et l’Occident:
adaptation et assimilation des idées et techniques occidentales en Iran 61–67 (Paris: Editions MSH, 1989); C. Noelle-Karimi, C.J. Schetter and R. Schlagintweit, Afghanistan: A Country Without a State, Vol. 2, Schrift enreihe der Mediothek für Afghanistan (Frankfurt am Main: IKO, 2002).
80 Huntington’s broader defi nition is helpful in this regard: ‘Institutions are stable, valued, recurring patterns of behaviour. Organisations and procedures vary in their degree of institutionalisation. Harvard University and the newly opened suburban high school are both organisations, but Harvard is much more of an institution than the high school.’ S.P. Huntington, Political Order in Changing Societies 12 (New Haven: Yale University Press, 1968).
81 C. Davis, ‘A’ Is for Allah, ‘J’ Is for Jihad, 19(1) World Policy Journal 90–94 (2002). 82 S.R. Samady, Modern Education in Afghanistan, 31(4) Prospects 587–602 (2001). 83 T. Ruttig, Islamists, Left ists – and a Void in the Center. Afghanistan’s Political Parties and
where they come from (1902–2006) (Kabul: Konrad-Adenauer-Stift ung, 2006); A. Giustozzi, Between Patronage and Rebellion: Student Politics in Afghanistan (Kabul: AREU Briefi ng Paper Series, Afghanistan Research and Evaluation Unit, February 2010).
84 A Giustozzi, War, Politics and Society in Afghanistan, 1978–1992 (London: C. Hurst & Co. Publishers, 2000).
85 C.J Schetter, Ethnizität und ethnische Konfl ikte in Afghanistan (Berlin: Reimer, 2003).
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5. IDEAL AND REALITY OF STATEHOOD
Th e Afghan state that throughout its history possessed only the most threadbare material existence86 emerged from the civil war without functioning governance institutions and was largely reduced to the idea of a territorial and political entity. As such it paradoxically acquired through the shared experience of common struggle against the Soviets and communal exile a psychological hold over the national imagination that it had never enjoyed in peacetime.87 Given the diffi cult terrain, most Afghans had traditionally led very localised lives, both physically and in terms of political loyalty.88 Th e confl ict that erupted in 1978 and the mass exodus that ensued brought Afghans into contact with other Afghans from diff erent parts of the country and ethnic backgrounds, oft en for the fi rst time in living memory.
Prior to 1978, membership in the Afghan state meant little to an ethnically and geographically divided population,89 as loyalties and identities were mainly based on kinship ties which had only a very tenuous link to territorial units. Th e dual impact of the foreign invasion and the subsequent extreme political fragmentation among the mujahideen forces, which threatened the dismemberment of the country, changed the perception of the national territory among ordinary Afghans.90
It was only through the experience of exile and resistance that the idea of the nation as a ‘communauté de destin’91 gained ground. While ethnic divisions persist, most Afghans today strongly identify with the Afghan nation. To be sure, in the absence of other meaningful political units, distributional struggles over power and resources continue to be expressed in ethnic terms, but membership in the nation as such is no longer disputed. What successive Afghan governments failed to accomplish has thus been achieved by default: the forging of a national identity, albeit at the cost of a long and painful confl ict.
Th e fact that the idea of an Afghan nation is no longer contested is a positive development. But it cannot obscure the fact that there exists absolutely no consensus about how this nation should constitute itself and order its public life. While the adoption of a new Constitution in 2004 as part of the Bonn Process
86 Good accounts of its history include V. Gregorian, Th e Emergence of Modern Afghanistan: Politics of Reform and Modernization, 1880 – 1946 (Stanford: Stanford University Press, 1969); M. Hasan Kakar, Government and Society in Afghanistan: Th e Reign of Amir Abdur Rahman Khan (Austin: University of Texas Press, 1979).
87 C. Schetter, Die Territorialisierung nationaler und ethnischer Vorstellungen in Afghanistan, 44(1) 75 Orient (2003).
88 See Chapter 1, Th e Sociogenesis of the Afghan State, in: G. Dorronsoro, Revolution Unending: Afghanistan, 1979 to the Present 23–61 (London: C. Hurst & Co. Publishers, 2005).
89 B.R. Rubin, Th e Fragmentation of Afghanistan: State Formation and Collapse in the International System 22 (New Haven, Conn.: Yale University Press, 2002, 2nd ed.).
90 Schetter, supra note 87. 91 Bachardoust, supra note 47, p. 21.
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agreed in December 2001 has certainly been a remarkable achievement in light of the scores of failed earlier mediation eff orts, few would argue that the Constitution substantially settled many divisive political issues.92 More damaging still, as a poorly draft ed piece of law it does not even provide robust procedural guidelines about how to settle these issues in a reasonably peaceful manner.93
Chief among the disputed provisions of the Constitution have been the debate about the nature of the state as a parliamentary or presidential system and between a central or federal system. As just one example among many to illustrate the technically inferior quality of the draft ing, one can refer to Article 60, which sets out to defi ne the role of the President in a polity ostensibly dedicated to the separation of powers, but ending up fundamentally missing the point of an independent judiciary or representative democracy: ‘Th e President is the head of state of the Islamic Republic of Afghanistan, and conducts his authorities in executive, legislative, and judiciary branches in accordance with the provisions of this Constitution.’94 Th e poor technical quality of this and similar provisions has subsequently been refl ected in the incoherent and unworkable Basic Organisational Law currently under review, which seeks to translate the Constitution into the daily reality of government, but of course cannot resolve these inherent contradictions.95
Likewise, the role of religion has been controversial and it cannot be argued that the Constitution has satisfactorily settled these debates. Its Article 3 provides laconically that ‘[i]n Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam.’ Such stipulations can be found in a large number of Muslim states, notably in Egypt and Pakistan,96 and there is a vigorous debate about the utility and desirability of such eff orts in terms of legal policy.97 Whatever normative position one might want to take with respect to the (re-)introduction of divine law into a modern state machinery, the Afghan example is particularly ill-conceived because it ignores the methodical tools,
92 Th is is, for instance, explicitly admitted in the otherwise critical commentary by International Crisis Group, Afghanistan’s Flawed Constitutional Process.
93 It is not necessary to describe here in detail the draft ing history and content of the Constitution, as good accounts are plentiful in the literature. See inter alia Schoiswohl, supra note 72, p. 675, 678.
94 Afghan Constitution 2004, Article 60, sentence 1 (emphasis added). 95 Th e author is currently involved in reviewing this law for the Civil Service Commission. 96 B. Johansen, Th e Relationship between the Constitution, the Sharî’a and the Figh in the
Jurisprudence of Egypt’s Supreme Constitutional Court, 64(4) Zeitschrift für ausländisches öff entliches Recht und Völkerrecht 881–96 (2004); C.B. Lombardi, Note: Islamic Law as a Source of Constitutional Law in Egypt: Th e Constitutionalization of the Shari’a in a Modern Arab State, 37 Columbia Journal of Transnational Law 81 et seq (1998).
97 E. Afsah, Constitution-Making in Islamic Countries – A Th eoretical Framework, in: R. Grote and T. Röder (eds), Constitutional Law in Islamic Countries (Oxford: Oxford University Press, 2010).
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such as a clear hierarchy of norms, to resolve inevitable confl ict of laws.98 Similarly impractical has been the reference in Article 131 to the applicability of their personal law to followers of the Shia sect.99 Heralded at the time as a great step towards minority protection, the provision has since proven to be singularly abrasive and open to political abuse, not least as a tool to suppress the rights of women and children protected elsewhere in the Constitution.100
6. STATEHOOD AS A PREREQUISITE OF CONSTITUTIONALISM
Before looking at some of the more problematic elements of the constitutional bargain and its interpretation by the Supreme Court, attention must be drawn to the underlying problem of the continued malaise in Afghanistan. Too much can be made of a purely textual critique of the constitutional provisions reserving an elevated role for Islam,101 the insincere lip-service being paid to international law and the human rights obligations the country assumed through its adherence to international covenants in Article 7 of its Constitution,102 the insuffi cient protection of women,103 etc. Lawyers are trained to work with texts and therefore fi nd it most convenient to focus their attention on the quotable constitutional provisions and the few properly draft ed pieces of legislation that have been promulgated since.104 Th e problem is that such textual exegesis tells us little if anything about the legal reality105 in a country where the state, even aft er almost
98 See inter alia S. Tellenbach, Fair Trial Guarantees in Criminal Proceedings Under Islamic, Afghan Constitutional and International Law, 64(4) Zeitschrift für ausländisches öff entliches Recht und Völkerrecht 929–41 (2004); Schoiswohl, supra note 45, p. 836–8.
99 ‘Courts shall apply Shia school of law in cases dealing with personal matters involving the followers of Shia Sect in accordance with the provisions of law. In other cases if no clarifi cation by this constitution and other laws exist and both sides of the case are followers of the Shia Sect, courts will resolve the matter according to laws of this Sect.’ Afghan Constitution 2004, Article 131.
100 J. Boone, ‘Worse than the Taliban’ – new law rolls back rights for Afghan women, Th e Guardian, (London, 31 March 2009).
101 El Fadl, et al, Democracy and Islam in the New Constitution of Afghanistan (California: Rand Corporation, 2004).
102 Schoiswohl, supra note 45, p. 851–60. 103 M.H. Kamali, References to Islam and Women in the Afghan Constitution, 22 Arab Law
Quarterly 270–306 (2008). 104 Good analyses of the constitutional provisions can be found in R. Grote, Separation of Powers
in the New Afghan Constitution, 64(4) Zeitschrift für ausländisches öff entliches Recht und Völkerrecht 897–915 (2004); Mahmoudi, supra note 71.
105 Th is is the main problem of purely textual approaches such as M. Hamed Saboory, Th e Progress of Constitutionalism in Afghanistan, in: Nadjma Yassari (ed.) Th e Shar’a in the Constitutions of Afghanistan, Iran, and Egypt 5–22 (Hamburg: Mohr Siebeck, 2005); R. Moschtaghi, Organisation and Jurisdiction of the Newly Established Afghan Courts – Th e Compliance of the Formal System of Justice with the Bonn Agreement, 10 Max Planck Yearbook of United Nations Law 531–90 (2006).
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ten years of sustained Western fi nancial, military, and technical support, exists for all intents and purposes in name only. Here we do well to remember Samuel Huntington’s opening lines of his seminal Political Order in Changing Societies: ‘Th e most important political distinction among countries concerns not their form of government but their degree of government.’106
Th e contemporary debate about the constitutional protection of individual and group rights and the attendant emphasis on the necessity of vigorous constitutional jurisprudence has been premised on the negative experience with Eastern European states that if anything, functioned too well. Th ese states followed the Leninist model of using the state apparatus as an instrument of forceful social engineering and suppression. Consequently, following the collapse of the old order it was generally seen as necessary to defuse the state’s coercive machinery and emasculate its instruments of repression through the creation of eff ective means of interpellation. In short, the protection of the citizen from the state was and continues to be seen as the primary goal of constitutional law and jurisprudence.
In this light, most analysis of the Afghan Constitution has focused exclusively on the procedure of its adoption and its textual exegesis,107 critiquing whether consultations were inclusionary enough,108 whether those tasked with draft ing it requested and received suffi cient technical draft ing expertise,109 whether the
106 Huntington, supra note 80, p. 1 (emphasis added). 107 For a comprehensive and insightful account, see J.A. Th ier, Th e Making of a Constitution in
Afghanistan, 51(3) New York Law School Law Review 557–80 (2006). 108 K. Papagianni, Transitional Politics in Afghanistan and Iraq: Inclusion, Consultation, and
Public Participation, 15(6) Development in Practice 747–59 (2005). For the offi cial view heavily emphasising the inclusiveness of the prior consultation and subsequent public education process, see Secretariat of the Constitutional Commission of Afghanistan, Th e Constitution-making Process in Afghanistan (Kabul: Constitutional Commission, 10 March 2003).
109 In short, they did neither. See the pertinent critique by Schoiswohl who, like the author, was personally involved in the process: ‘Th e Draft Constitution, largely based on the 1964 ancestor, similarly suff ered from yet insuffi cient legal considerations in view of the overshadowing major political issues that needed to be resolved. Emphasis had primarily been given to meeting the deadlines stipulated in the Bonn Agreement, rather than to develop a legally sound and consistent document. Th e composition of the Constitutional Draft ing and Review Commissions was not driven by legal (constitutional) considerations (expertise), but rather by the need for establishing a balanced platform for the conception of the basic structure of the future State of Afghanistan. Perhaps a function of the “light foot” approach and its emphasis on national ownership, neither the Draft ing Commission nor the Review Commission perceived the technical assistance off ered by the international community as more than advisory. Nor was the technical assistance geared towards the legal technicalities of constitutional draft ing, but remained largely preoccupied with the provision of broad conceptual choices on the basis of comparative studies. It should be added, that little constitutional expertise was available within the United Nations on the ground, which mostly relied on consultancies and the commissioning of (comparative) studies abroad. Th e few attempts to highlight technical concerns were either not taken seriously or simply lacked understanding.’ Schoiswohl, supra note 67, p. 670.
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distribution of the political organs of the state was equitable or eff ective,110 whether the bill of rights it contained was suffi cient and in conformity with international human rights standards,111 and whether the role of Islam in the text was likely to portent future problems for rights protection and eff ective governance.112 Th ese are very important issues, not least with respect to their implications for future stabilisation missions in other post-confl ict scenarios.113
But in the peculiar Afghan context – and arguably in most other failed states as well – there is an even more important issue, namely the actual capacity of the state to act. While public law prescribes how the state is to use its power, the real question is what power the state has at its disposal.114
Whatever the lessons of the post-Communist renaissance of liberal democracy,115 recent experience in countries as diverse as Somalia, Afghanistan, Chechnya, Sudan, etc teaches that however dangerous overbearing, strong states can be for individual liberty, the absence of statehood does not necessarily portent greater personal freedom.116 As the destruction and subsequent implosion of Iraq has shown, an erstwhile strong and repressive state cannot necessarily be seen as an unmitigated evil if the alternative is chaos.117 If the early 1990s could be characterised by a growing public appreciation of the wisdom of John Locke, Jean-Jacques Rousseau or Baron Montesquieu, the early 21st century has undoubtedly forced us to recognise how pertinent Th omas
110 Especially the extreme American pressure in favour of a presidential as opposed to a parliamentary or a mixed system with a prime minister has been criticised extensively. See inter alia L.P. Goodson, Bullets, Ballots, and Poppies in Afghanistan, 16(1) Journal of Democracy 24–38 (January 2005).
111 Schoiswohl, supra note 45; B.R. Rubin, Transitional Justice and Human Rights in Afghanistan, 79(3) International Aff airs 567–81 (2003); Amnesty International, Afghanistan: Re-establishing the Rule of Law (London: Amnesty International, International Secretariat, 2003); S. Tellenbach, Fair Trial Guarantees in Criminal Proceedings Under Islamic, Afghan Constitutional and International Law, 64(4) Zeitschrift für ausländisches öff entliches Recht und Völkerrecht 929–41 (2004).
112 S.A. Arjomand (ed.), Constitutional Politics in the Middle East – With Special Reference to Turkey, Iraq, Iran, and Afghanistan (Portland: Hart Publishing, 2008); Kamali, supra note 103; R. Hirschl, Th e Rise of Constitutional Th eocracy, 49 Harvard International Law Journal 72–82 (2008); Travis, supra note 64; Mahmoudi, supra note 71.
113 S. Chesterman, Imposed Constitutions, Imposed Constitutionalism, and Ownership, 37(4) Connecticut Law Review 947–54 (Summer 2005); N. Feldman, Imposed Constitutionalism, 37(4) Connecticut Law Review 857–91 (Summer 2005); D.S. Lutz, Th inking about Constitutionalism at the Start of the Twenty-First Century, 30(4) Publius, Essays in Memory of Daniel J. Elazar 115–35 (2000).
114 B.R. Rubin, supra note 61, p. 165–70. 115 A. Lijphart and C.H. Waisman, Institutional Design in New Democracies: Eastern Europe
and Latin America (Boulder: Westview Press, 1996). 116 L. Diamond, Promoting Democracy in Post-Confl ict and Failed States: Lessons and
Challenges, in: National Policy Forum on Terrorism, Security, and America’s Purpose (6–7 September 2005); J.L. Hirsch and R.B. Oakley, Somalia and Operation Restore Hope (Washington DC: US Institute of Peace Press, 1995).
117 J. Benomar, Constitution-Making aft er Confl ict: Lessons for Iraq, 15(2) Journal of Democracy 81–95 (April 2004).
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Hobbes continues to be. In a place like Afghanistan, governmental repression is the least of personal worries because it is the absence of governance of any sort that makes life ‘nasty, brutish and short’. Th e current nostalgia felt for the Communist president Najibullah or the persistent latent sympathy with Taliban shadow governance structures show that some predictability and stability, even at the price of repression, is widely perceived to be better than no authority.118
Th e Afghan state had been weak to begin with, but since the fall of the Communist regime in 1992 it is questionable whether it continued in anything more than nominal form. As a weak state built on personal and ethnic loyalties rather than any of the abstract principles Weber described for the rational bureaucratic state,119 law never played a very prominent role in the administration and governance of Afghanistan.120 During the height of the civil war of 1992– 1996 it appears almost obscene to speak of a state at all. During the Islamic Emirate set up by the Taliban from 1996–2001, reasonably eff ective governance was indeed established, but no attempt was made to formalise this structure, let alone create a legal foundation for this edifi ce.121 Whatever the ideological claims brought forward by the Taliban about the ‘authenticity’ of their form of government and their way of administering justice, it does not appear that it lived up to the standards of procedural and substantive clarity and predictability required by Islamic law, whether in its historical122 or in contemporary form.123
It is important to recall that the Bonn Process did not come at the end of an inconclusive civil war in which the participants had exhausted their physical and psychological means of fi ghting.124 Rather, the various losers of the previous confl agration were brought together by an external actor who had interfered and
118 International Crisis Group, Afghanistan: Elections and the Crisis of Governance. 119 Max Weber, Wirtschaft und Gesellschaft : Grundriss der Verstehenden Soziologie (Frankfurt
am Main: Zweitausendeins, 2005), pp. 157–164, 715–716. 120 O. Roy, De la stabilité de l’État en Afghanistan, 59(5/6) Annales Histoire, Sciences Sociales
1183–202 (Asie centrale 2004); M.H. Kamali, Law in Afghanistan: A Study of the Constitutions, Matrimonial Law and the Judiciary, 36 Social, Economic and Political Studies of the Middle East (Leiden: Brill, 1985); Leon B. Poullada, Reform and Rebellion in Afghanistan, 1919–1929: King Amanullah’s Failure to Modernize a Tribal Society (Ithaca: Cornell University Press, 1973).
121 Th e ruthless but relatively eff ective, if haphazard, manner of the Taliban regime is described in A. Rashid, Taliban: Islam, Oil, and the New Great Game in Central Asia (London: I.B. Tauris, 2000).
122 Baber Johansen, Staat, Recht und Religion im sunnitischen Islam, in Contingency in a Sacred Law – Legal and Ethical Norms in the Muslim Fiqh , Baber Johansen (ed), Studies in Islamic Law and Society (Leiden: Brill, 1999), 263–348; M. Khadduri and H.J. Liebesny (eds), Law in the Middle East, Vol. 1. Origin and Development of Islamic Law (Washington DC: Th e Middle East Institute, 1955).
123 Probably the closest approximation of a contemporary legal system with its historical model can be found in Saudi Arabia, ably described in F.E. Vogel, Islamic Law and Legal System: Studies of Saudi Arabia (Leiden: Brill, 2000).
124 Th e importance of this factor for lasting peace is stressed in Edward N. Luttwak, Give War a Chance, 4 Foreign Aff airs (1999), 36 et seq.
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taken sides in an ongoing civil war.125 Without denigrating either process or outcome, it is necessary to underline that the parties in Bonn and later during the Emergency and Constitutional Loya Jirgas did not share a common normative or practical vision for the (re-)establishment of governance in Afghanistan.126 Th e resulting arrangement, while miraculous for the sheer feat of having been concluded within the extremely tight timeframe, neither resolved most of the lingering divisions over the normative direction of society nor the distribution of power between the envisaged organs.
More importantly, the constitutional form simply assumed, as the entire Bonn Process had done, that the Afghan state was not only a purely nominal entity but existed in a tangible manner. It is this assumption which is most problematic and which renders most constitutional discussions in the Afghan context ultimately moot. Th e dilemma was aptly summarised by the current Chief Justice of the Supreme Court when asked by a claimant what to do with the verdict in his favour that was simply ignored by the powerful defendant: ‘If there was any problem in our procedure, you come to us,’ he said. ‘But we do not have any soldiers. We have no force to use. Th ere are so many cases where decisions are made but not enforced. In these cases, there is nothing we can do.’127
7. CONSTITUTIONALISM WITHOUT A STATE?
Th e Afghan state has throughout its history depended on foreign largesse by the competing foreign powers – fi rst the Russian and British empires, later the Soviet Union and United States128 – supplemented by a recovering Germany aft er each of the two World Wars.129 Th e Cold War provided Afghanistan with ample opportunities to play off the superpowers against each other and extract signifi cant rents from both sides in the form of military and economic aid.130 Not surprisingly, the Afghan state acquired the outward appearance of modern
125 L. Lombart, La reconstruction politique de l’Afghanistan post-taliban: de la chute de l’Émirat islamique à la proclamation de la République islamique (2001–2004), 60 Revue française de droit constitutionnel 861–82 (2004).
126 Comprehensive accounts can be found in Th ier, supra note 107; Afsah and Guhr, supra note 26; International Crisis Group, Afghanistan: Th e Constitutional Loya Jirga, ICG (Brussels/ Kabul, 12 December 2003).
127 K. Barker, At the Supreme Court, an unlikely new hero. Afghanistan’s chief justice has launched a quiet revolution, targeting corrupt judges and demanding accountability in the country’s long-inept judiciary, Chicago Tribune (21 January 2007).
128 B.R. Rubin, Th e Search for Peace in Afghanistan: From Buff er State to Failed State (New Haven: Yale University Press, 1995).
129 Th e close link between the Weimar Republic and King Amanullah’s Afghanistan is described inter alia in B. Chiari and M. Forschungsamt (eds), Afghanistan: Wegweiser zur Geschichte (Paderborn: Schöningh, 2006).
130 Th is was supplemented by support given by superpower satellites such as Britain, West and East Germany. Th e type of projects and the enormous relative scope of these external transfer
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statehood, including ministries, a court system, a diplomatic service, etc. But as a rentier state,131 Afghanistan dispensed with the need to establish a monopoly of force and to extract enough resources to pay for this security,132 as state formation historically has been characterised.133
Instead, Afghan leaders used foreign money to build weak institutions that could neither raise revenue nor eff ectively carry out decisions of the state. In a sense, the Afghan state existed like a Potemkin village only in outward appearance, and these façades were then further eroded during the decades of civil war. Th e situation in December 2001 presented the outside world with a fi ercely proud, violently defi ant, and internally divided Afghan society in the midst of severe unrest.
7.1. INSTITUTIONS MATTER
Recalling the earlier defi nition of an institution as a ‘stable, valued, recurrent pattern of behaviour’,134 legal institutions in Afghanistan are few and far between. Th ere is nothing stable about the manner in which disputes are settled, which generally depends on the balance of physical force rather than normative commitments, Islamic, tribal, or otherwise. Th ere is nothing valued about the way warlords, tribal chiefs, and war entrepreneurs have managed to entrench their hold on society.135 Th ose norms that do enjoy legitimacy, be they traditional or religious, largely exist outside formal structures. And apart from endemic corruption, violence, and despotism there is little recurrent about the pervasive insecurity that prevails in the country and the way politics is conducted there.136
Th e political pact reached in Bonn could not create institutions but relied instead on resurrecting old ones which nominally had continued to exist. Crucial
payments for the Afghan budget are described, if somewhat uncritically, in L. Dupree, Afghanistan (Princeton, N.J.: Princeton University Press, 1973).
131 States that derive a signifi cant portion of their budget from unproductive endeavours, essentially windfalls, are described as rentier economies. Th e ideal type are those enjoying income from oil and gas, Panama or Egypt from canal fees, but also poor states where foreign aid essentially fulfi ls the same function. For a discussion, see H. Katouzian, Th e Political Economy of Modern Iran: Despotism and Pseudo-modernism, 1926–1979 (London: Macmillan, 1981).
132 C. Tilly, Th e Formation of Nation States in Western Europe (Princeton: Princeton University Press, 1975); C. Tilly, Coercion, Capital and European States, AD 990–1990 (Cambridge: Basil Blackwell, 1990).
133 Huntington, supra note 80, chapter 1. 134 See above n. 135 Goodson, supra note 110; J. Goodhand, From War Economy to Peace Economy?
Reconstruction and State Building in Afghanistan, 58(1) Journal of International Aff airs 155– 74 (Fall 2004); B.R. Rubin, Th e Political Economy of War and Peace in Afghanistan, 28(10) World Development 1789–803 (2000).
136 C.J. Riphenburg, Afghanistan: Out of the Globalisation Mainstream?, 27(3) Th ird World Quarterly, 507–24 (2006).
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questions about who should govern and what direction the polity was to take were postponed and relegated to future elections. But elections require a set of political institutions to be eff ective and not divisive, namely ‘[t]he development of a pattern, and ultimately a culture, of moderation, accommodation, cooperation, and bargaining among political elites’ which is increasingly stressed in process-oriented thinking on democratic transition and consolidation.137
At the heart of any constitutional compact lies the commitment by all societal actors towards a ‘security community in which there is real assurance that the members of that community will not fi ght each other physically but will settle their disputes in some other way.’138 Constitutionalism is therefore premised on the ability of the state to credibly police this commitment and thus rests on a particular notion of law. In this Weberian sense, law is a quintessential ingredient of the rationally organised Anstaltsstaat139 because ‘law was necessary for the conduct and discipline of diplomatic and military administration in the new territorial states priding themselves on their effi ciency.’140 In any constitutional state – whether committed to an expansive, ‘thick’ notion of liberalism or to a restrictive, ‘thin’ version141 – there is an implicit acceptance that power resides primarily in the bureaucracies that administer it, not necessarily in the person that formally holds it:
In a modern state, actual power is manifested neither in parliamentary speeches nor in royal pronouncements, but in the bureaucratic dealings of everyday life. Power thus inevitably lies in the hands of civil servants, both military and civilian.142
Law is the tool by which rational bureaucracies communicate and act. While it is possible to imagine the dispensation of justice, ie the application of law, without a formal bureaucracy,143 it is diffi cult to imagine a modern bureaucracy in the Weberian sense without rational, predictable, standard operating procedures, in other words without law.144
137 L. Diamond, Developing Democracy – Towards Consolidation 166 (Baltimore: John Hopkins University Press, 1999) (emphasis in the original).
138 K.W. Deutsch, Political Community and the North Atlantic Area 5 (Princeton: Princeton University Press, 1957) (emphasis added).
139 Weber, supra note 119, p. 157–222, particularly p. 159–160, 164. 140 Q. Wright, A Study of War 332 (Chicago: University of Chicago Press, 1965, 2nd ed. [1st ed.
1942]). 141 See the contribution by S. Beaulac, Lost in Transition? Domestic Courts, International Law
and Rule of Law ‘À la Carte’, in this volume at p. 142 Weber, supra note 119, p. 1047 (translation by the author). 143 See for instance T. Barfi eld, Afghan Customary Law and Its Relationship to Formal Judicial
Institutions, United States Institute for Peace (Washington DC, 26 June 2003). 144 Weber, supra note 119, p. 162–65, 716–23; see also J.-C. Spender, Organizational Knowledge,
Learning and Memory: Th ree Concepts in Search of a Th eory, 9(1) Journal of Organizational Change Management 63–78 (February 1996); M.D. Cohen and P. Bacdayan, Organizational Routines Are Stored As Procedural Memory: Evidence from a Laboratory Study, 5(4) Organization Science 554–68 (November 1994).
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Th is, however, is clearly not an adequate description of contemporary Afghanistan, nor has it ever been true throughout its history. As a quintessentially pre-modern145 state, power in Afghanistan has always been personal, and formal institutional arrangements meant little beyond the individuals, their convictions, and their connections. Th is is amply demonstrated in the Afghan court system and most pertinently, in its Supreme Court.
7.2. DECREPIT JUSTICE SYSTEM
Th ere is a regrettable Manichean tendency in the public perception of the ongoing Afghan intervention, much of it the result of deliberate political statements by troop-sending nations. Th ere are the vilifi ed Taliban representing an atavistic, inhuman ideology on one side, and a reasonably coherent broad public and elite alliance yearning for ‘freedom’ on the other. Both the monolithic vision of the Taliban is inaccurate, as is the postulation that there exists even a modicum of agreement among the other power brokers about the desirable direction of the country.146 Th e transitional process set off by the Bonn Agreement has not been an eff ective ‘constitutional moment’ for at least two reasons. First, there was an overwhelming continuity of armed elites from the civil war into the new era, albeit without any commitment to ideological or physical disarmament.147 Second, no political agreement was ever reached about a common normative vision. Th e absence of such a shared vision meant that the institutional and normative set-up of the state was not realigned to produce a workable edifi ce. Instead, the existing state apparatus, however dysfunctional, was retained and all attention focused on the division of spoils. Accordingly, the distribution of institutional power in the constitutional set-up was not based on a logical balance of power or checks and balances, but responded unabashedly to the jockeying and horse-trading for personal infl uence.148
Th is has been particularly apparent in the formal judicial system. Th e existing court structure remained in place and continued to be staff ed by the very same individuals who had been put into their judgeships by previous governments, most notably during the Taliban emirate. A minute fraction of these individuals
145 It is important to stress that the term ‘modernity’ is used here in a technical, Weberian sense, ie it refers to a particular institutional alignment. It is not meant to convey necessarily a value judgment in the sense that popular discourse oft en equates modernity with progress, liberation, etc. For an elaboration see Afsah, supra note 70; M. Berman, All Th at is Solid Melts into Air: Th e Experience of Modernity (New York: Penguin, 1988).
146 J.F. Tierney (ed.), Warlord, Inc. Extortion and Corruption Along the U.S. Supply Chain in Afghanistan, Report of the Majority Staff , Subcommittee on National Security and Foreign Aff airs, Committee on Oversight and Government Reform (Washington DC: US House of Representatives, June 2010).
147 Roy, supra note 120. 148 International Crisis Group, Afghanistan: Elections and the Crisis of Governance; Barfi eld,
supra note 58.
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possessed any legal training at all, and the vast majority did not even possess a secondary school leaving certifi cate.149 As a result of considerable pressure during the Constitutional Loya Jirga by very powerful warlords, notably Abdul Rasul Sayyaf,150 an extremely conservative Pashtun cleric, Faisal Ahmad Shinwari, without any formal legal training, was appointed by President Karzai as Chief Justice to head the Supreme Court.151
While nominally not associated with the previous regime, Mr Shinwari was in cultural, political, ethical, and ethnic outlook extremely close to Taliban positions. He staff ed the Supreme Court exclusively with elderly Pashtun clerics and showed an astounding disregard for any procedural rules laid down in the Constitution or elsewhere.152 Th e Supreme Court thus approximated the other organs of the state, which were seen more in terms of ethnic fi efs than in terms of institutional functions.153 While he and the members of the bench appointed by him certainly shared a commitment to an extreme version of political Islam very much like that propagated by the Taliban or other extremist groups,154 the most startling aspect of his tenure has been his utter ignorance and, more disquieting still, disinterest in the formal requirements of legal process, whether constitutional or Islamic.155
Th is is particularly surprising and revealing in light of the well-documented commitment by him and his backers to Wahabist Islam.156 Legal opinions were rarely, if ever, couched in legal terms, let alone following established procedures. A number of highly controversial legal opinions were issued, none of which paid much heed to legal subtleties such as methodically sound statutory interpretation or levels of jurisdiction, beyond paying lip service to ‘Afghan legal sovereignty’ and undefi ned references to ‘national mores’.157
149 Data collected while working 2004–2005 on the Priority Reform and Restructuring (PRR) programme in the Supreme Court, Ministry of Justice, and Attorney General’s Offi ce on contract from the World Bank and UNDP.
150 Ustad Abdul Rasul Sayyaf, Global Security, n.d, available at www.globalsecurity.org/military/ world/ afghanistan/sayyaf.htm (visited 19 May 2010).
151 For a personal account of a colleague who worked with me during this time on administrative reform at the Supreme Court, see A. Schwarz, Justizreform und Islam in Afghanistan, 65(1) Zeitschrift für ausländisches öff entliches Recht und Völkerrecht 257–68 (2005).
152 Instead of the constitutionally mandated nine members of the Supreme Court (including himself), he appointed for instance more than 130 (!) Supreme Court judges, overwhelmingly Pashtun and without legal qualifi cation.
153 Schetter, supra note 85; A. Banuazizi et al, Th e State, Religion, and Ethnic Politics: Afghanistan, Iran, and Pakistan (Syracuse: Syracuse University Press, 1986).
154 Despite the demonization of the Taliban, their particular worldview is by no means an isolated, or even particularly extreme iteration of a wider phenomenon. See Sadiq Jalal al-Azm, Islam, Terrorism, and the West Today, 44(1) Die Welt des Islams 114–28 (2004).
155 Th is is, aft er all, one if not the key characteristic of orthodox Islamic law. For a discussion of the literature and historical examples see inter alia B. Johansen, Casuistry: Between Legal Concept and Social Praxis, 2 Islamic Law and Society 135–56 (1995).
156 N.J. DeLong-Bas, Wahhabi Islam: From Revival and Reform to Global Jihad (New York: Oxford University Press, 2004).
157 He drew particular opprobrium for reinstating the hated Taliban-era Ministry for the Promotion of Virtue and Prevention of Vice, renamed as the Ministry for Haj and Religious
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Despite being re-nominated by President Karzai amidst much international opposition, Mr Shinwari failed to obtain the necessary parliamentary approval in May 2006. Th is opened the way for the appointment of a dramatically diff erent bench. Th e new bench is largely technocratic, far better educated and ethnically more diverse. Th e new Chief Justice, Abdul Salam Azimi, and most of the other justices have proper law degrees, sometimes from foreign institutions. Th e new court is dramatically more attuned to a reasonably liberal social vision, as well as for the fi rst time in decades actually being able to draft proper legal opinions.
Th e most controversial decisions taken by the court since then have concerned the distribution of power between the various organs of the state, thereby exposing the technical limitations of the Constitution as a legal text. Th e fi rst dramatic instance concerned the interpellation of then Foreign Minister Rangin Dadfar Spanta by parliament.158 Th e Supreme Court delivered a surprisingly well reasoned opinion, predictably siding with President Karzai and reinstating Minister Spanta.159 Th e most recent controversy surrounded the certifi cation of the disputed presidential elections won under allegations of fraud by President Karzai. Th e Court has likewise concerned itself with a number of international crises aff ecting the government, such as the repeated expulsion of Afghan refugees by Iran, but it is questionable to what extent the Court had standing to express itself on these matters.
8. CONCLUSION
While the composition of the new Supreme Court is certainly an enormous advance over the previous court, and despite the commitment and personal integrity of many of its members, the overall institutional set-up does not permit us to speak of credible constitutionalism, let alone a constitutional moment inspired by international law. Th e state continues to be endemically weak to non- existent, and the very concept of an objective, impersonal civil service in the
Aff airs. Th e dubious formal authority of such an essentially executive act is apparent. Further controversial decisions concerned for instance the banning of cable TV, coeducation, broadcasts of female singers, etc. See inter alia Reporters Sans Frontières, Afghanistan: Supreme Court bans cable TV, International Secretariat, Asia-Pacif